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The Penal System
The Penal System
An Introduction

6th Edition

Michael Cavadino
James Dignan
George Mair
Jamie Bennett

Los Angeles
London
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Melbourne
SAGE Publications Ltd

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SAGE Publications Inc.

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©Michael Cavadino, James Dignan, George Mair, Jamie Bennett,

2020
First published 1992
Second edition 1996
Third edition 2001
Fourth edition 2007
Fifth edition 2013
This sixth edition published 2020
Apart from any fair dealing for the purposes of research or private
study, or criticism or review, as permitted under the Copyright,
Designs and Patents Act, 1988, this publication may be reproduced,
stored or transmitted in any form, or by any means, only with the
prior permission in writing of the publishers, or in the case of
reprographic reproduction, in accordance with the terms of licences
issued by the Copyright Licensing Agency. Enquiries concerning
reproduction outside those terms should be sent to the publishers.
Library of Congress Control Number: 2019943592

British Library Cataloguing in Publication data

A catalogue record for this book is available from the British Library

ISBN 978-1-5264-6068-4

ISBN 978-1-5264-6069-1 (pbk)

Editor: John Nightingale

Editorial assistant: Eve Williams

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Cover design: Francis Kenney

Typeset by: C&M Digitals (P) Ltd, Chennai, India

Printed in the UK
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Contents
Preface to the Sixth Edition
Online Resources
INTRODUCTION
I.1 The Criminal Justice System
I.2 The Penal Crisis and Strategies for Criminal Justice
I.3 Notes on Terminology: ‘Punishment’ and ‘System’
1 CRISIS? WHAT CRISIS?
1.1 Is There a Crisis?
1.2 The Orthodox Account of the Crisis
The High Prison Population (The ‘Numbers Crisis’)
Overcrowding
Bad Conditions
Understaffing
Staff Unrest
Security
‘Toxic Mix’ of Prisoners
Riots and Disorder
Criticisms of the Orthodox Account
1.3 Improving on the Orthodox Account
The Crisis of Penological Resources
The Crisis of Visibility
The Crisis of Legitimacy
1.4 Responses to the Crisis
1.5 A Radical Pluralist Account of the Crisis
2 JUSTIFYING PUNISHMENT
2.1 Is Punishment Unjust?
2.2 Reductivism
Deterrence
Incapacitation
Reform
2.3 Just Deserts: Retributivism and Denunciation
Retributivism
 Denunciation
2.4 Restorative Justice
2.5 Schools of Penal Thought
The Classical School: Deterrence and the Tariff
Bentham and Neo-Classicism: Deterrence and Reform
Positivism: The Rehabilitative Ideal
The Justice Model: Just Deserts and Due Process
From ‘Just Deserts’ to ‘the New Punitiveness’ – and
Beyond?
2.6 Philosophies, Strategies and Attitude
2.7 Conclusions: Punishment and Human Rights
3 EXPLAINING PUNISHMENT
3.1 The Sociology of Punishment
3.2 The Marxist Tradition
Economic Determinism: Rusche and Kirchheimer
Ideology and Hegemony: The Legacy of Gramsci
‘Structuralist Marxism’ and Althusser
Post-Structuralism, Discipline and Power: Michel
Foucault
Humanistic Materialism: The Case of E. P. Thompson
3.3 The Durkheimian Tradition
3.4 The Weberian Tradition
3.5 Pluralism and Radical Pluralism
3.6 Applying Penal Sociology
The New Penology and the New Punitiveness
Comparative Penology and the New Punitiveness
4 SENTENCING: THE CRUX OF THE CRISIS
4.1 The Crux of the Crisis
4.2 Who Are the Sentencers?
4.3 Constraints on the Powers of Sentencers
Judicial Independence and Traditional English
Sentencing
Confining Discretion
Checking Discretion: Appeals
Structuring Discretion: Principles and Guidelines
The Current Legal Framework of Sentencing
 4.4 A Brief, Tangled Recent History of Sentencing
1991: From the Strategy of Encouragement to ‘Just
Deserts’
1992–7: The Law and Order Counter-Reformation
New Labour, Mixed Messages
Coalition False Dawn
The Conservative Government’s Fragile Stability
4.5 A Rational Approach?
5 PUNISHMENT IN THE COMMUNITY
5.1 Community Punishment in a Rapidly Changing Penal
Landscape
5.2 Non-Custodial Punishment: The Current Sentencing
Framework
Nominal and Warning Penalties
Financial Penalties
Community Penalties
Semi-Custodial Penalties
5.3 The Changing Shape of Non-Custodial Punishment
Warning Penalties
Financial Penalties
Compensatory Penalties
Reparative Penalties and Restorative Justice
Approaches
Supervisory Penalties and the Changing Role of the
Probation Service
Community Payback (‘Community Service’ or ‘Unpaid
Work’)
Surveillance and Restrictions on Movement: Curfews
and Electronic Monitoring
‘Hybrid’ Penalties
5.4 Community Punishment: Strategic Issues
Changing Penal Strategies and Their Impact on the Use
of Imprisonment and Community Punishment
Enforcement of Community Sentences: Sticks or
Carrots?
 ‘Sentence Management’ and the Changing Role of the
Judiciary
Effectiveness of Community Sentences
Transforming Rehabilitation? The Probation
Privatization Disaster
5.5 Shifting Patterns of Penality: Theoretical Reflections
Scull’s ‘Decarceration’ Thesis
Cohen and Mathiesen: The ‘Dispersal of Discipline’
Thesis
Bottoms’ ‘Juridical Revival’ Thesis
5.6 Conclusion: The Future of Punishment?
6 PRISONS AND THE PENAL CRISIS
6.1 Overview
6.2 The Aims and Functions of Imprisonment
Official Aims of Imprisonment
Social Functions of Imprisonment
6.3 The Prison System
The Prisons and the Prisoners
Privatization
The Debate around Prison Privatization
Privatization and the Crisis of Resources
6.4 Key Phases in Recent Prison Policy-Making
1995–2002: From Security and Control to Decency
2002–06: Keeping the Lid On – Pragmatism Reasserts
Itself
2006–12: Searching for Direction
2012–19: A Tale of Six Justice Secretaries
6.5 The Prison System and Its Crises
The Managerial Crisis
The Crises of Containment and Security
The Prison Numbers Crisis and the Problem of
Overcrowding
The Crisis of Conditions
The Crises of Control and Authority
The Crisis of Accountability
The Crisis of Legitimacy
7 EARLY RELEASE: THE PENAL SYSTEM’S SAFETY VALVE
7.1 Early Release: Useful, Controversial, Troublesome
7.2 History of Early Release
From Remission to Automatic Early Release
Parole (Discretionary Early Release)
7.3 Early Release Today
Fixed-Term (Determinate) Sentences
Extended Sentences
Life Imprisonment and Imprisonment for Public
Protection
The Parole Board
7.4 Conclusion: Early Release Evaluated
8 THE YOUTH JUSTICE SYSTEM
8.1 Young People, Crime and the Penal Crisis
8.2 Responding to Youth Crime: Models of Youth Justice
The Welfare Model
The Justice Model
Minimum Intervention and Systems Management
The Restorative Justice Model
Neo-Correctionalism
8.3 Neo-Correctionalism and Beyond: Youth Justice Since
1997
8.4 Responding to Youth Crime: The Youth Justice System
in Operation
8.5 Concluding Assessment: A Quiet but Unfinished
Revolution?
9 DIVERSITY AND BIAS IN THE CRIMINAL JUSTICE SYSTEM
9.1 Introduction
9.2 Class
9.3 Race
9.4 Gender
9.5 Other Issues of Diversity and Bias
9.6 Concluding Comment
10 SOLVING THE CRISIS?
10.1 A Grim Fairy Tale
10.2 Responses to the Crisis, 1970–2019
 From Positivism to ‘Law and Order’ with Bifurcation:
1970–87
‘Just Deserts’ and Punishment in the Community:
1987–92
Law and Order Reinvigorated: 1993–7
‘Tough on Crime, Tough on the Causes of Crime’: New
Labour, 1997–2010
Austerity and the Crisis of Neo-Liberalism: Coalition
and Conservative Governments since 2010
10.3 How to Solve the Crisis
Approaches to the Penal Crisis
Measures to Solve the Crisis
The Prospects
Glossary of Key Terms
Notes
References
Index
Preface to the Sixth Edition

George Mair
Jamie Bennett
The Penal System was first published in 1992 and now, in 2019, here
comes the sixth edition. The longevity of the book is – we hope – an
acknowledgement of the coherence and persuasiveness of its
arguments. It is also, of course, a result of the penal crisis that it
explores being with us for so long that the book still has
contemporary relevance. And, last but by no means least, it is a
tribute to the work of Mick Cavadino and Jim Dignan who recognized
the need for a book focusing on the problems associated with the
penal system and – unlike many academics – then went on to write
that book. Retirement has meant that Mick and Jim’s input to this
edition has been limited, but we hope that this edition lives up to the
standards that they have set.

This edition brings the narrative up to the beginning of 2019 and the
crisis continues. Indeed, the last six years have – if anything – seen
matters worsen. Chris Grayling, one of several Justice Secretaries
during this period, seemed bent on ruining both prisons and
probation. Austerity has meant deep cuts in prison, court and
probation budgets with serious, wide-ranging and negative
consequences. The probation service has been subjected to a
disastrous privatization initiative which has led to near-total collapse.
And the ongoing confusion and uncertainty around Brexit have led to
an increasing sense of instability across the political board which
shows little sign of resolution. As we argue, this sense of impending
crisis may just provide an opportunity for reform of the penal
system, but we are not holding our breath.
It would be invidious to single out those individuals who have helped
us directly and indirectly with this edition; we are grateful to you all
– you know who you are. As usual, Sage has been supportive
throughout. Finally, we wish to acknowledge our partners and
children who have to live with the writing process – not always an
easy thing to do. George would like to thank Carmel for her unfailing
patience and love; and Ruth and Ethan for being themselves. Jamie
would like to thank Susan, Ben and Elizah, who make every day
worthwhile.
Online Resources

The Penal System: An Introduction (Sixth Edition) is accompanied by

a full Online Resources site, which you can access at:

https://study.sagepub.com/thepenalsystem6e

Containing resources for both lecturers and students, the website

complements and builds on the material presented in the book, and
includes the following:

For Instructors
The Sample Syllabus helps instructors devise a course plan
according to the book’s content to improve both teaching and
learning experiences.

PowerPoint Lectures can be utilised as guidelines for course

presentations and adapted as needed for the module’s necessities.

For Students
A carefully curated list of Web links including blogs, datasets, and
webpages provides students with the most relevant research
material.

Annotated further reading for each chapter directly

complements the subject matter for every chapter and supports
further study.

Updated summaries of key legislation, White Papers,

consultation documents and other official reports.
Introduction
Chapter Contents
I.1 The Criminal Justice System 2
I.2 The Penal Crisis and Strategies for Criminal Justice 6
I.3 Notes on Terminology: ‘Punishment’ and ‘System’ 8

This book is about the penal system – the system that delivers official
punishment to those who have broken the law.1 (See section I.3
below to find out exactly what we mean by ‘punishment’.) More
precisely, we are centrally concerned with the ‘English’ penal system,
by which we mean the system in England and Wales. (Scotland and
Northern Ireland have separate systems.) However, much of what we
say (especially about penal philosophy and penal sociology in
Chapters 2 and 3) is of relevance to more than one country; and at
times we will be referring to other penal systems to help illuminate
the English (and Welsh) experience. While we have tried to be
factually correct, to outline differing viewpoints and to be as
comprehensive as is possible in a book of this size, we have not felt
any need to be shy about expressing our own opinions. In a nutshell,
these are that the English penal system is unjustly and irrationally
harsh, and that our penal practices and attitudes towards punishment
require radical revision.

I.1 The Criminal Justice System

The penal system, which exists to punish those found guilty of
crimes, is part of a larger entity known as the criminal justice system,
a term covering all those institutions which respond officially to the
commission of offences, notably the police, prosecution authorities
and courts. It is often misleading or unsatisfactory to examine the
penal system in isolation from the larger criminal justice system.
Consequently, at times in this book – for example in Chapter 9 – we
deal with the criminal justice system as a whole.
There now follows a very brief and basic guide to the criminal justice
system as a whole, to assist readers who may not be familiar with
the system or its terminology. Figure I.1 is a simplified diagram of the
criminal justice system up to the point where an offender is
sentenced by a court, which is the moment when the offender enters
the penal system.

In many cases when a crime is committed – indeed, in most cases –

the agencies of criminal justice never respond at all. For the criminal
justice process normally starts to operate only when a crime is
reported to the police, and fewer than half of all crimes are reported.
For the year ending March 2018, it was estimated that only around
40 per cent of all crimes uncovered by the Crime Survey for England
and Wales were reported to the police (ONS, 2018). And the police
fail to officially record about 29 per cent of those crimes that are
reported (ONS, 2018). If an alleged offence is reported, or otherwise
comes to the attention of the police, the police may then investigate
it. The police have a wide range of powers (notably those contained
in the Police and Criminal Evidence Act 1984) to carry out searches
and to arrest and question suspects in pursuit of their investigations.
If there appears to be sufficient evidence to put a suspect on trial,
the police may charge an arrested suspect with the offence. This is
the first stage in the prosecution process, and it is now the Crown
Prosecution Service (CPS) – a state agency independent of the police
– who instruct the police as to whether suspects should be charged
in most cases of any seriousness. The police then normally take the
suspect before the local magistrates’ court, where the prosecution is
conducted by the CPS.
Figure I.1 The criminal justice system in England and Wales, up to
the point of sentence
An alternative procedure has historically been known as the
summons. Under this procedure the police apply to a magistrate for a
summons, which is an order to attend court, but the suspect remains
at liberty for the time being. (Under provisions of the Criminal Justice
Act 2003 which are being phased in, the existing ‘charge’ and
‘summons’ are replaced by a single procedure known as a ‘written
charge’ which can be made by either the police or the CPS. This
procedure still allows a suspect who has been released from arrest or
never arrested to be prosecuted, but removes the necessity to apply
to a magistrate.) Another possible alternative is to dispense with
prosecution entirely and for the police instead to administer an official
warning known as a caution. A caution should not be given unless
the offender admits guilt. No formal punishment ensues, but the
caution will form part of the offender’s official criminal record. A
variant is a ‘conditional caution’, where the caution is accompanied by
specific conditions which the offender must comply with. (In recent
years young offenders under 18 have received not ‘cautions’ but
reprimands and warnings, also known as ‘final warnings’. The Legal
Aid, Sentencing and Punishment of Offenders Act 2012 replaced
these with ‘youth cautions’ and ‘youth conditional cautions’: see
further Chapter 8.) In 2009, 33 per cent of known indictable
offenders were ‘diverted from court’ by being cautioned, reprimanded
or warned rather than prosecuted. The police can also issue a
‘cannabis warning’ (which does not amount to an official caution) for
first offenders found in possession of this drug. Yet another possibility
is a fixed penalty notice (or ‘spot fine’), which can be imposed by
police officers and certain other specified officials for a wide variety of
minor offences. A relatively new out-of-court penalty, the community
resolution, can involve reparation to victims and could – in future –
replace most of the other ways of dealing with offenders without
formal prosecution. In 2017, 246,000 individuals were dealt with by
way of out-of-court disposals – a significant decrease since 2007
when 669,000 were issued.

When the alleged offender reaches the magistrates’ court (and

becomes a ‘defendant’), the court may have to decide whether to
grant the defendant bail (conditional release prior to the actual trial)
or whether the defendant should be remanded in custody for the
time being. (See further Chapter 4, section 4.1.) Custodial remands
are usually to prison, or to a remand centre (a type of prison
reserved for remandees).

Criminal offences fall into three categories: indictable only, summary

only and triable either way.2 This categorization determines at which
court – magistrates’ court or Crown Court – the trial will be held. The
most serious offences are indictable only (for example murder, rape
and robbery): these must be tried at the Crown Court before a judge,
with a jury of 12 randomly selected lay people to decide on the
verdict if the defendant pleads not guilty. In these cases the
magistrates’ court sends the case to the Crown Court for trial ‘on
indictment’. Offences which are summary only (for example common
assault, minor criminal damage and most motoring offences) must be
tried ‘summarily’ at the magistrates’ court before at least two and
normally three lay justices of the peace or a single district judge (a
professional judge, formerly known as a ‘stipendiary magistrate’).
Offences which are ‘triable either way’ include theft, arson and most
burglaries. If a defendant charged with one of these offences pleads
not guilty, the magistrates then decide whether to commit the
defendant to be tried in the Crown Court trial or whether the case
may be tried in the magistrates’ court; if the latter, the decision then
lies with the defendant, who has the right to insist on a Crown Court
trial for a triable either way offence. However, in practice the great
majority of triable either way offences are tried in the magistrates’
court, either because the magistrates offer a summary trial that is
accepted by the defendant, or because the defendant pleads guilty.
Magistrates can nevertheless still decide to commit a triable either
way defendant to the Crown Court for sentence (see below).

If the defendant pleads guilty or is found guilty (in other words, is

convicted of the offence), the magistrates or judge then pass
sentence. The sentence is the punishment (or other order of the
court) which is imposed upon the defendant as a consequence of
committing the crime. A few offences have mandatory or semi-
mandatory penalties attached, as explained in Chapter 4. Most
offences, however, have a statutory maximum penalty – for example
seven years’ imprisonment for theft – but no statutory minimum. The
magistrates’ court also has statutory limits on its sentencing powers:
it cannot sentence an offender to more than six months in prison for
a single offence or to more than 12 months in total. (These maxima
will be increased to 12 months and 65 weeks if and when sections
154–155 of the Criminal Justice Act 2003 are brought into force.)
However, a magistrates’ court can commit an offender it has
convicted to the Crown Court to be sentenced there if it feels that its
sentencing powers are inadequate. As long as the statutory maxima
are not exceeded, the court usually has a wide range of sentences to
choose from. These include the custodial sentences of imprisonment
(for adults), detention in a young offender institution (for offenders
aged 18 to 20) and detention and training orders (for young
offenders under 18). Non-custodial penalties (to which we devote
Chapter 5) include suspended sentence orders, fines, community
orders (including what used to be known as probation and
community service orders), and absolute and conditional discharges.
The court may be assisted in its choice of sentence by a pre-sentence
report, usually prepared by a probation officer (or, in the case of
juvenile offenders, by a member of the youth offending team: see
Chapter 8). Pre-sentence reports provide the sentencer with
information about the offender’s behaviour and social and family
background, and normally include a proposal for what the sentence
should be.

Convicted defendants may appeal to a higher court either against

their conviction or against the sentence which has been passed, or
both. Defendants convicted and sentenced in the magistrates’ court
normally appeal to the Crown Court; appeals from the Crown Court
go to the Court of Appeal (Criminal Division). The Attorney General (a
‘government law officer’ who is both a member of the government
and its chief legal adviser) has the power to refer certain Crown Court
cases to the Court of Appeal on the grounds that the acquittal was
legally wrong or the sentence is too lenient.

A sentence of imprisonment (see Chapter 6) does not usually mean

that the offender will serve the full term of the sentence pronounced
by the court. For example, offenders sentenced to two years’
imprisonment will normally be released after one year subject to a
‘licence’ requiring them to be supervised in the community for the
rest of the sentence, and at the discretion of the prison authorities
they may be released earlier still under a ‘home detention curfew’
enforced by electronic monitoring (or ‘tagging’). (The system of early
release from prison sentences is explained and discussed in Chapter
7.)

Non-custodial sentences (see Chapter 5) usually require the offender

to carry out some action, such as pay a fine or compensation or
perform unpaid work. Alternatively, the offender may be required to
refrain from acting in certain ways, in particular to avoid reoffending
within a given time limit (for example if the sentence is a conditional
discharge or a suspended sentence order). Offenders who breach the
terms of their sentences either by disobeying their requirements or
by reoffending can be brought back to court as a result, and the
court then has a range of sanctions available. These sanctions often
include the power to pass custodial sentences, which may be
additional (or ‘consecutive’) to any custodial sentence imposed for a
fresh offence.

Punishment in both prison and in the community is mostly

administered by HMPPS (Her Majesty’s Prison and Probation Service)
although, as we shall see in Chapters 5 and 6, an increasing amount
is now provided by private firms and organizations. HMPPS combines
the Prison and Probation Services, and was originally created in 2004
as the National Offender Management Service (NOMS) in response to
a recommendation in the Carter Report (2003); it became HMPPS in
2017 (see further Chapter 5). The Chief Executive of HMPPS is
answerable to the Secretary of State for Justice. The latter is the
senior government minister – also known as the ‘Justice Secretary’,
and also bearing the title ‘Lord Chancellor’ – who is in charge of the
Ministry of Justice. The Ministry of Justice is the government
department which since May 2007 has responsibility for the courts,
prisons, probation and youth justice. (Previously the Home Office and
Home Secretary were responsible for prisons, probation. sentencing
and criminal justice policy; they retain responsibility for the police
service.)
The whole of the criminal justice system is subject to the provisions
of the Human Rights Act 1998, which incorporated the European
Convention on Human Rights into English law. Under the 1998 Act, all
public bodies – including criminal justice agencies such as the police,
and HMPPS – are under a legal duty to act in accordance with the
Convention. Furthermore, English courts are bound where possible to
interpret English Acts of Parliament so that they are compatible with
the Convention. If the court decides that English law is unequivocally
incompatible with the Convention it must make a formal declaration
to this effect; the government can then use special procedures to
change the law to remove the incompatibility. As well as using the
English courts, citizens can also take their cases to the European
Court of Human Rights at Strasbourg when they have exhausted all
domestic avenues of redress. Human rights law has had some
important effects on English penal law, requiring for example
significant alterations in arrangements for early release (see Chapter
7.)

I.2 The Penal Crisis And Strategies For Criminal

Justice
This book is largely concerned with the ‘crisis’ in the English penal
system and the policies which governments have developed in
response to this crisis. Chapter 1 introduces the ‘penal crisis’, and we
then go on to discuss facets of this ‘crisis’ and the responses to it
throughout this book. Chapters 2 and 3 are heavily theoretical, but
unashamedly so, for they are also intimately connected to the crisis
theme. Chapter 3’s exploration of penal sociology underpins our
analysis of how the crisis should be explained, while our investigation
of the philosophy of punishment in Chapter 2 should contribute to an
understanding of why the penal system suffers from its crucial ‘crisis
of legitimacy’. Chapters 4 to 9 deal with various aspects of the system
and its crisis. Chapter 4 identifies the sentencing decisions of courts
as the crux of the crisis. Chapter 6 investigates the troubled prison
system, while Chapters 5 and 7 deal with two developments which
have so far had less than total success in relieving pressure on the
system: the proliferation of non-custodial penalties and the
mechanisms for early release of prisoners. Chapter 8 examines the
parallel system of youth justice, equally prone to its own parallel
crises, and for similar reasons. Chapter 9 investigates the burning
issue of bias within the criminal justice system. Finally, in Chapter 10
we discuss whether the crisis is likely to be solved, and put forward
our own agenda for change.

In analysing and discussing criminal justice policies we find it helpful

to use a general, three-fold categorization of criminal justice policies
which we call ‘Strategies A, B and C’ (based on Rutherford, 1993; see
Cavadino et al., 1999). Strategy A is a highly punitive approach
embodying what we call ‘law and order ideology’ (see Chapter 1) and
‘the new punitiveness’ (see Chapter 3, section 3.6): the attitude that
offenders should be dealt with as severely as possible. A
governmental strategy based on this attitude would involve making
criminal justice harsher and more punitive at every stage and in every
respect. Strategy A embodies an ‘exclusionary’ approach to offenders,
tending to reject them as members of the community (see Cavadino
et al., 1999: 48–50). The ‘managerialist’ Strategy B (associated with
the ‘new penology’ which we discuss in Chapter 3, section 3.6) seeks
to apply administrative and bureaucratic mechanisms to criminal
justice in an attempt to make the system as smooth-running and
cost-effective as possible. Strategy C seeks to protect and uphold the
human rights of offenders, victims and potential victims of crime. It
seeks to minimize punishment, and to ensure fairness and humane
treatment within the criminal justice system, and is ‘inclusive’, seeking
to maintain offenders within the community and reintegrate them as
law-abiding citizens. Proponents of Strategy C are not all of one
mind: some favour measures to rehabilitate and reform offenders
(see section 2.2 of Chapter 2), while others advocate ‘restorative
justice’ measures which seek to ensure that offenders perform
reparation to their victims and to the community (see Chapters 2
(section 2.4), 5 and 8). Others again, while still being motivated by
humanitarianism and a wish to lessen the harshness of punishment in
general, propound the view that offenders should be punished in
proportion to the seriousness of their offences, according to their ‘just
deserts’ (see Chapter 2, sections 2.3 and 2.5).

Chapter 10 provides a history of the strategies adopted by national

governments up to the present day, but a brief summary is
appropriate here to set the scene. In the early 1980s, the
Conservative government of Margaret Thatcher injected a heavy dose
of ‘Strategy A’ into penal policy, deliberately making punishment
harsher in many respects. However, from around 1987 onwards – a
period we refer to as ‘the Hurd era’, after Home Secretary Douglas
Hurd (1985–1989) – the Thatcher government’s penal policy became
less dogmatic and more pragmatic. The centrepiece of this new
strategy was the Criminal Justice Act 1991, which among other
objectives sought to reduce the prison population and make it more
easily manageable (a ‘Strategy B’ aim) while also for the most part
making punishments fairer and more proportionate (Strategy C). The
idea was that more offenders than hitherto should undergo
‘punishment in the community’ rather than being sent to prison;
additionally, most offenders were to receive punishments which were
in proportion to the seriousness of the crime (‘just deserts’).
However, within months of the Act’s implementation in 1992 the
Conservative government abandoned this strategy. From 1993 to
1997, in a development we call ‘the law and order counter-
reformation’, John Major’s Conservative government – especially in
the person of Michael Howard, Home Secretary from 1993 to 1997 –
pursued ever harsher ‘Strategy A’ policies, marked by Howard’s
famous declaration to the Conservative Party Conference in October
1993 that ‘prison works’. Thus did we enter a phase which has been
termed ‘the New Punitiveness’ (Pratt et al., 2005; see also Chapter 3,
section 3.6). The ‘New Labour’ government of Tony Blair (1997–2007;
succeeded by Gordon Brown from 2007 to 2010) sought to
implement its famous campaign promise to be ‘tough on crime and
tough on the causes of crime’ by pursuing a mixture of policies with
elements of all three of Strategies A, B and C. Although in ideological
terms New Labour was less unremittingly ‘Strategy A’ than its
predecessor, nevertheless the prison population rose to
unprecedented heights during this period. This rise continued under
the Conservative–Liberal Democrat coalition government which came
to power in 2010, despite vain attempts by Justice Secretary Kenneth
Clarke to move penal policy in a less punitive direction. Since then, a
slightly bewildering number of Justice Secretaries (six, including
Clarke, since 2012) have done little to change direction – although
Chris Grayling (September 2012–May 2015) tried hard to instil a more
punitive approach, and currently David Gauke (January 2018–
present) is trying to move in the opposite direction.

I.3 Notes On Terminology: ‘Punishment’ And

‘System’

‘Punishment’
Terminological quibbles start here. Some people prefer not to use the
word ‘punishment’ for measures which are intended to help the
offender, such as probation (or to help the victim, such as
compensation) rather than to hurt or harm the offender. However, in
this book we use the word to refer to any measure which is imposed
on an offender in response to an offence.

Just to complicate matters, however – and for want of a better word

– we are more or less forced to use the word ‘punitive’ as an
adjective referring to measures whose primary purpose is to take
away the liberty of offenders or otherwise make them suffer, for
purposes such as retribution or deterrence (terms explained in
Chapter 2). Thus, in our terminology there are ‘punitive punishments’
such as imprisonment and ‘non-punitive punishments’ which have
aims such as the reformation of the offender or providing reparation
to victims.

We also occasionally use the term ‘penality’, which encompasses

ideas about punishment as well as concrete penal practices.
‘System’
Perhaps the title of this book is misleading. Arguably, one of the
salient features of the English penal and criminal justice ‘systems’ –
at least until fairly recently – has been their highly unsystematic
nature. For many years a number of disparate relatively autonomous
agencies have worked in relative isolation from each other, exercising
wide and unaccountable discretionary powers, and subject to no
overall co-ordination or strategic control (or ‘joined-up thinking’, to
use a phrase recently popular with politicians). Some writers have
even described criminal justice as a ‘non-system’. Whether that
description is still an accurate one is an issue to be considered in the
light of developments in recent years (see in particular Chapters 4, 5
and 8). In any event, we do have penal and criminal justice ‘systems’
in the sense that they are composed of different agencies (public and
private) which are interdependent: their activities intimately affect
each other and they need to be studied within this context of
interdependency. We see this kind of ‘systems analysis’ as an
important tool in understanding the penal system and attempting to
bring about positive modifications.

A host of other terms are explained in what we hope is a useful

Glossary near the end of this book.
1 Crisis? What crisis?
Chapter Contents
1.1 Is There a Crisis? 12
1.2 The Orthodox Account of the Crisis 13
The High Prison Population (The ‘Numbers Crisis’) 15
Overcrowding 18
Bad Conditions 19
Understaffing 19
Staff Unrest 20
Security 21
‘Toxic Mix’ of Prisoners 22
Riots and Disorder 23
Criticisms of the Orthodox Account 23
1.3 Improving on the Orthodox Account 24
The Crisis of Penological Resources 25
The Crisis of Visibility 25
The Crisis of Legitimacy 26
1.4 Responses to the Crisis 29
1.5 A Radical Pluralist Account of the Crisis 33

1.1 Is There a Crisis?

The penal system is in a state of crisis.

This might not seem a controversial claim. Nor would most people in
this country imagine that this ‘penal crisis’ is either new or sudden. For
many years, media reports have acquainted everyone with the notion
that rocketing prison populations, overcrowding, unrest among staff
and inmates, escapes and riots and disorder in prisons add up to a
severe and deepening penal crisis. The term ‘crisis’ has been common
currency in both media and academic accounts of the penal system for
over 30 years now; the word recurs in newspaper headlines and in the
titles of academic books and articles (for example Bottoms and Preston,
1980). Evidence for the existence of a crisis seems to be constantly in
the news. Recent years have seen – to mention just a few out of many
possible illustrations – the then Justice Secretary (Chris Grayling) having
to deny the existence of a crisis in 2014 following a highly critical
annual report from the Prisons Inspectorate (HMIP, 2014a); the
Ombudsman condemning ‘the wholly unacceptable level of violence’ in
prisons in 2016 (Prisons and Probation Ombudsman, 2016: 1); the
President of the Prison Governors’ Association publishing an open letter
in 2017 claiming that prisons were in crisis (Guardian, 2 August 2017);
prison officers taking industrial action; an Urgent Notification Procedure
being introduced in November 2017 in an effort to resolve serious and
pressing issues in prisons; the head of the prison service being told to
step down early as a result of the prisons crisis (Guardian, 20
September 2018); damning reports from the House of Commons Justice
Committee, the National Audit Office and the Chief Inspector of
Probation about the disastrous results of the government’s privatization
of probation services (House of Commons, 2018; HM Inspectorate of
Probation, 2019; National Audit Office, 2019); and another report from
the House of Commons Justice Committee condemning ‘an enduring
crisis in prison safety and decency that has lasted five years’ (House of
Commons Justice Committees 2019: 6). All of this comes against the
background of a prison population which continues at near record
levels, considerable cuts in budgets due to the response to the financial
crisis of 2008, what seems like a never-ending succession of Justice
Secretaries (six including Kenneth Clarke since 2012) and a continuing
deep malaise running through the penal system as a whole.

Yet is it really a ‘crisis’? Perhaps few would dispute that the penal
system has serious problems – but is it really in a state of crisis? Then
again, how long can a crisis last while remaining a crisis rather than
business as usual? Surely there is something paradoxical in claims that
the crisis has lasted for decades, or even (as was once said) that the
system has been ‘in a perpetual state of crisis since the Gladstone
Committee report of 1895’ (Fitzgerald and Sim, 1982: 3).

If to be in crisis means that the whole system is on the brink of total

collapse or explosion, then we probably do not have a crisis, although
with regard to the probation service we could be closer to this than we
have ever been. And it should not be forgotten that when systems do
collapse or explode – like the communist system in Eastern Europe in
the late twentieth century, or the system of order within Strangeways
Prison immediately before the historic riot of April 1990 – they can do
so very suddenly. But it can be validly claimed that there is a crisis in at
least two senses, identified by Morris (1989: 125). First, we have ‘a
state of affairs that is so acute as to constitute a danger’ – and, we
would add, a moral challenge of a scale which makes it one of the most
pressing social issues of the day. Second, we may be at a critical
juncture, much as a seriously ill person may reach a ‘turning point at
which the patient either begins to improve or sinks into a fatal decline’.
In other words, either the present situation could be used as an
opportunity to reform the system into something more rational and
humane, or else it will deteriorate into something much worse even
than the present. In this book we will be using the ‘C-word’ in these
senses to refer to the present penal situation in England and Wales,
albeit with slight embarrassment and the worry that it has been used so
often and for so long that there is a danger that it may be losing its
dramatic impact.

Whether or not we choose to use the word ‘crisis’, what are the causes
of the state the penal system is in, and how do its different problems
relate to each other?

1.2 The Orthodox Account Of The Crisis

The orthodox account of the penal crisis is probably still the kind of
commonsensical analysis underlying most mass media reports of
problems in the penal system. At least until Lord Justice Woolf’s 1991
report into the Strangeways riot (Woolf and Tumim, 1991) versions of it
were also regularly found in official reports purporting to explain
phenomena such as prison disturbances. It is well summarized by the
following extract from an old newspaper article entitled ‘Why the
Prisons Could Explode’ (Humphry and May, 1977):

Explosive problems remain in many of Britain’s prisons – a higher

number of lifers … who have nothing left to lose; overcrowding
which forces men to sleep three to a cell and understaffing which
 weakens security. Prisons, too, are forced to handle men with
profound psychiatric problems in conditions which are totally
unsuitable.

This passage gives us almost all the components of the ‘orthodox

account’ of the penal crisis. The crisis is seen as being located very
specifically within the prison system – it is not seen as a crisis of the
whole penal system, or of the criminal justice system, let alone as a
crisis of society as a whole. The immediate cause of the crisis is seen as
the combination of different types of difficult prisoners – what has been
called a ‘toxic mix’ of prisoners – in physically poor and insecure
conditions which could give rise to an ‘explosion’.

The orthodox account points to the following factors as implicated in

the crisis:

the high prison population (or ‘numbers crisis’);

overcrowding;
bad conditions within prison (for both inmates and prison officers);
understaffing;
unrest among the staff;
poor security;
the ‘toxic mix’ of long-term and life sentence prisoners and
mentally disturbed inmates;
riots and other breakdowns of control over prisoners.

Figure 1.1 The orthodox account of the penal crisis

These factors are seen as linked, with the last one – riots and disorder
– being the end product that epitomizes the state of crisis. Figure 1.1
shows how the different factors interact according to the orthodox
account. The high prison population is held responsible for
overcrowding and understaffing in prisons, both of which exacerbate
the bad physical conditions within prison. The combination of poor
conditions and inadequate staffing has an adverse effect on staff
morale, causing unrest which (through industrial action, for example)
serves to worsen conditions still further. The four factors of bad
conditions, overcrowding, understaffing and staff unrest are blamed for
poor security, which is another factor contributing to the unstable prison
environment. Finally, the combination of the ‘toxic mix’ of prisoners with
these deteriorating conditions within which they are contained is
thought to trigger the periodic riots and disturbances to which the
prison system is increasingly prone.

We do not believe that the orthodox account provides a satisfactory

explanation of the crisis, for reasons we shall be giving shortly. But
most of the factors identified by this account are real and important, as
we shall now detail.

The High Prison Population (The ‘Numbers

Crisis’)
 Table 1.1

Source: Ministry of Justice, Offender Management Caseload Statistics Tables and Prison
Population Monthly Bulletins (average populations1)

It is widely agreed – although perhaps not by all politicians – that the

number of prisoners in England and Wales is alarmingly high. It has
also, until relatively recently, been rapidly rising. Table 1.1 shows how
(despite occasional dips), the prison population rose to 86,000 in 2012
from under 40,000 since 1975 (a time when prison numbers were
already causing serious concern) and has almost doubled since 1993.
The prison population reached its highest ever peak so far of over
88,000 in December 2011, but has declined slightly in the past two
years. Official Home Office projections estimate that by 2023 the prison
population could increase by 3,200 (Ministry of Justice, 2018a).

There are several factors involved in this increase in prison numbers in

recent years. In Chapter 4 we discuss the relationship between some of
these factors, and conclude that the most crucial is the pattern of
decisions by the courts. The most important of these is the sentencing
decision – whether convicted offenders should be sent to custody and,
if so, for how long – which we call ‘the crux of the crisis’. These court
decisions can in their turn be greatly influenced by government policies,
actions and rhetoric. As we stated briefly in the Introduction (section
I.2) and detail further in Chapter 10 (section 10.2), for a long time both
Conservative and Labour governments generally attempted to keep the
size of the prison population under control by a mixture of legislation,
executive action and exhortations to courts. However, from 1993
onwards John Major’s Conservative administration reversed this stand
and pursued policies whose explicit aim was to increase the numbers of
people in prison, with Home Secretary Michael Howard famously
declaring in 1993 that ‘prison works’ to control crime. The ‘New Labour’
administrations of Tony Blair and Gordon Brown (1997–2010) may have
dropped the slogan ‘prison works’, but showed little interest in trying to
reduce custodial sentences; indeed, Labour Home Secretaries
repeatedly called for tougher sentences for a wide range of offenders.
Not surprisingly, therefore, the prison population rose to even greater
heights under New Labour and the same trend continued under the
Conservative/Liberal Democrat coalition government despite attempts
by Justice Secretary Kenneth Clarke to turn the tide. The rate of
increase in prison numbers did slow in 2010–2011, but the situation
altered rapidly and drastically in August 2011 as the courts began
dealing with defendants charged with offences connected with the
urban riots of that month. With the explicit encouragement of Prime
Minister David Cameron, sentencers imposed harsh and widely criticized
sentences on rioters and looters, and magistrates remanded large
numbers in custody to await trial at the Crown Court, thereby pushing
prison numbers to their new peak of 88,485 in December 2011. Since
then, while there has been a slight drop overall, alongside an increase
of 26 per cent in the number of recalls to custody in the four years to
2017 (Independent, 17 January 2019), there is little sign of a sustained
decrease in prison numbers.

Table 1.2

Source: International Centre for Prison Studies, World Prison Brief website, accessed
January 2019
As Table 1.2 shows, England and Wales (along with Scotland) currently
have the largest prison population in Western Europe in proportion to
the total number of people in the country as a whole.2 It is true that
proportionate prison populations are even higher in some countries
outside Western Europe: indeed, the United States has around five
times as many prisoners relative to its population as do England and
Wales.3 Nevertheless, within the Western European frame of reference
Great Britain does seem to be strikingly punitive, having maintained a
position high in the prison population league table for many years now.
This relatively high prison population does not seem to be because the
UK has more crime, or more serious crime, than comparable countries.4
Rather, it is because more offenders are sent to custody, and for longer
periods, in the UK than elsewhere in Western Europe (see, for example,
Barclay and Tavares, 2000; NACRO, 1998; Pease, 1992).

There should be little doubt, then, that the present and predicted future
size of the prison population is a major problem. If drastic steps are not
taken to reduce prison numbers – and there is currently no sign of any
such steps being taken – they seem likely to grow even more
alarmingly in the coming years.

Overcrowding
At the end of January 2019 English and Welsh prisons officially had
adequate space for 74,571 inmates, but actually contained 82,233,
making the system as a whole overcrowded by a factor of 9 per cent.
By ‘adequate space’ we mean the official figure for the ‘in use certified
normal accommodation’ (or ‘uncrowded capacity’5) of all prisons in
total. The Prison Service also identifies a higher figure, the ‘operational
capacity’, defined as ‘the total number of prisoners that an
establishment can hold taking into account control, security and the
proper operation of the planned regime’. Adding the operational
capacity of all prisons together and deducting a safety margin of 2,000
yields a total ‘useable operational capacity’ – informally known as the
‘bust limit’ – for the system as a whole. This ‘bust limit’ was actually
exceeded in April 2004 and again in February 2008. In recent years the
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Title: Ashes to ashes

Author: Isabel Ostrander

Release date: March 12, 2024 [eBook #73155]

Language: English

Credits: Brian Raiter

*** START OF THE PROJECT GUTENBERG EBOOK ASHES TO

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ASHES TO ASHES

by

ISABEL OSTRANDER
 Contents
I The Lie
II The Trap
III The Blow
IV The Long Night
V When Morning Dawned
VI The Verdict
VII The Letter
VIII The Truth
IX The Escape
X A Chance Meeting
XI Luck
XII Mirage
XIII The Black Bag
XIV In His Hands
XV Ashes to Ashes
XVI The Second Vigil
XVII Missing
XVIII The Girl in the Watch Case
XIX Found
XX Marked
XXI The Unconsidered Trifle
XXII At the Club
XXIII The Scourge of Memory
XXIV If George Knew
XXV The Final Test
 XXVI The Key
XXVII In the Library
XXVIII Just a Moment Please
 Chapter I.
The Lie
“Well, that’s the situation.” Wendle Foulkes’ keen old eyes
narrowed as they gazed into the turbulent ones of his client across
the wide desk. “This last batch of securities is absolutely all that you
have left of your inheritance from your father. Leave them alone
where they are and you are sure of three thousand a year for
yourself and for Leila after you.”
Norman Storm struck the desk impatiently, and his lean,
aristocratic face darkened.
“Three thousand a year! It wouldn’t cover the running expenses
of the car and our country club bills alone!” he exclaimed. “I tell you,
Foulkes, this investment is a sure thing; it will pay over thirty per cent
in dividends in less than four years. I have straight inside information
on it—”
“So you had on all the other impulsive, ill-judged ventures that
have wiped out your capital, Norman.” The attorney sighed wearily. “I
don’t want to rub it in, but do you realize that you have squandered
nearly four hundred thousand dollars in the past ten years on wildcat
schemes and speculations? You’ve come to the end now; think it
over. Your salary with the Mammoth Trust Company is fifteen
thousand a year—on eighteen you and your wife ought to be living
fairly comfortably. I grant you that three thousand income per annum
isn’t much to leave Leila in the event of your death, but it is better
than the risk of utter insolvency, and she’s been spending her own
money pretty fast lately.”
“It is hers, to do with as she pleases!” Storm retorted sulkily and
then flushed as the school-boyishness of his own attitude was borne
in upon his consciousness. “You cannot make big money unless you
take a chance. I’ve been unlucky, that’s all. My father made all his in
Wall Street, and his father before him——”
“In solid investments, not speculations; and they were on the
inside themselves. They had the capital to take a gambler’s chance
and the acumen to play the game.” Foulkes rose and laid his hand
paternally upon the younger man’s shoulder. “Forgive me, my boy,
but you haven’t the temperament, the knowledge of when to stop
and the strength to do it. Of course, this money is yours
unreservedly; you may have it if you want to risk this last venture, but
it will take some time for me to convert the securities into cash.
Remember, you have reached the bottom of the basket; I only want
you to stop and consider, and not to jeopardize the last few thousand
you have in the world.”
Outside in the bright May sunshine once more, Storm shouldered
his way through the noon-tide throng on the busy pavement with
scant ceremony, his resentment hot against the man he had just left.
Confound old Foulkes! Why didn’t he keep his smug counsels for
those who came sniveling to him for them? As if he, an official of a
huge and noted corporation, were a mere lad once more, to be
lectured for over-spending his allowance!
The fact that the position he held with the trust company entailed
no financial responsibility and was practically an honorary one,
granted him solely because of his father’s former connection with
that institution, was a point which did not present itself to his mind.
He was occupied in closing his mental eyes to the truth of the
lawyer’s arraignment, bolstering his defiance with excuses for the
repeated fiascos of his past ventures, and the secret knowledge that
Foulkes had read him aright only added fuel to the flames.
Still inwardly seething, he crossed Broadway and plunged into
another narrow, crowded cross-street lined by towering office
buildings whose walls rose like cliffs on either side. From the tallest
of these, an imposing structure of white stone which reared a shaft
high above its neighbors, a woman emerged and mingled with the
hurrying host before him. She was not a toiler of the financial district;
that was evident from the costly simplicity of the smart little toque
upon her shining golden hair and the correct lines of her severely
tailored costume. She was undeniably pretty with the delicate, tender
irregularity of feature which just escapes actual beauty; yet it was not
that which caused Norman Storm to halt and drove from him all
thought of the late interview.
It was his wife. Leila! What possible errand could have brought
her to the city and to this portion of it? Surely an unexpected one, for
she had not told him of any such intention; indeed, to his knowledge
she had never before invaded the precincts of finance, and he could
conceive of no possible reason for her presence there.
As he paused, momentarily petrified with astonishment, a stout
little man upon the opposite curb also caught sight of the young
woman’s hurrying figure, and he, too, stopped in surprise, a smile
lighting his plain, commonplace features. Then, as though drawn by
a magnet, his pale, rather faded blue eyes traveled straight to where
Norman Storm stood, the surprise deepened, and with a half-audible
exclamation he started across the street toward him; but a long
double line of drays and motor trucks barred his way.
Meanwhile Leila had vanished utterly in the crowd, and Storm
realizing the futility of an attempt to overtake her, dismissed the
matter from his thoughts with a shrug. She would tell him of her
errand, of course, on his return home; and a conference of
importance awaited his immediate presence at the office of the trust
company.
The conference developed complications which delayed him until
long after the closing hour, forcing him to forego an engagement with
Millard for a round of golf at the country club. He likewise missed his
accustomed train bearing the club car out to Greenlea and was
compelled to herd in with commuters bound for the less exclusive
suburban communities on the line.
Storm was not a snob, but the atmosphere of petty clerking and
its attendant interests grated upon his tired, highly strung
sensibilities; the unsatisfactory interview of the morning with Foulkes
returned to exasperate him further and he was in no very genial
frame of mind when he alighted at the station.
But Barker was on hand promptly with the smart little car which
consumed such an incredible amount of gasolene, and the air of the
soft spring twilight was infinitely grateful after the smoke and
stuffiness of the train. As they drove swiftly past the rolling lawns of
one spacious landscape garden after another, each burgeoning with
its colorful promise of the blossoming year, his taut nerves relaxed,
and he settled back in contented ease. What if he had been unlucky
in past speculations, if old Foulkes did consider him an unstable
weakling? Leila believed in him, and she was his, all his!
The glimmer of white upon the veranda half-hidden in the trees
resolved itself into a slender, fairy-like figure, and as he alighted from
the car and mounted the steps she caught his hands in the eager,
childish way which was one of her chief charms.
“Oh, Norman, how late you are! Poor dear, did they keep him at
that wretched old office and make him miss his golf?” She lifted her
face for his evening kiss, and her soft, blue eyes glowed with a deep,
warm light. “George is here; I mean, he ’phoned from the Millards’.
He’s coming over for dinner.”
“That’s the reason for the début of the new white gown, eh?”
Storm laughed. “By Jove, I believe I ought to be jealous of old
George! When a man’s wife and his best friend——”
“Don’t!” There was a quick note almost of distress in Leila’s
tones. “I don’t like to hear you joke that way about him, dear. He
seems so lonely, standing just outside of life, somehow. He hasn’t
anything of this!”
She waved her little hands in a comprehensive gesture as if to
take in the whole atmosphere of the home, and her husband laughed
carelessly once more.
“It’s his own fault, then. Don’t waste any sympathy on him on that
score, Leila. George is a confirmed old bachelor; he would run a mile
from a suggestion of domesticity.” At the door he turned. “Oh, I say
dear——”
But Leila was already down the steps and had started across the
lawn, at the farther side of which Storm discerned a short stout
commonplace figure approaching; and turning once more he
hastened to his room to change.
George Holworthy, two years his senior, had been a classmate of
Storm’s at the university twenty years before, and the
companionship—rather a habit of association than a friendship—
which had grown up between the undisciplined, high-spirited boy and
his duller, more phlegmatic comrade had proved a lasting one
despite the wide dissimilarity in their natures. Storm was too
fastidious, Holworthy too seriously inclined, for dissipation to have
attracted either of them, but while the former had drifted, plunging
recklessly from one speculation to another, the latter had plodded
slowly, steadily ahead until at forty-two he had amassed a
comfortable fortune and attained a position of established
recognition among his business associates.
An hour later, as they sat drinking their after-dinner coffee on the
veranda, Leila’s words returned to his mind, and Storm found himself
eying his guest in half-disparaging appraisal. Good, stupid old
George! How stodgy and middle-aged he was getting to be! His hair
was noticeably thin on top and peppered with gray and he looked
like anything but an assured, successful man of affairs as he
lounged, round-shouldered, in his chair, his mild eyes blinking
nearsightedly at Leila, who sat on the veranda steps cradling one
chiffon clad knee between her clasped hands.
George looked every day of fifty. Now, if he would only patronize
a smart tailor, join a gymnasium and work some of that adipose
tissue off, he wouldn’t be half bad-looking. Unconsciously Norman
Storm squared his shoulders and drew his slim, lithe form erect in his
chair. Then his muscles tightened convulsively and he sat with every
nerve tense, for a snatch of the disjointed conversation had
penetrated his abstraction and its import stunned him.
“You weren’t in town to-day, then?” The question, seemingly a
repetition of some statement of Leila’s, came stammeringly from
Holworthy’s lips.
“Oh, dear, no!” Her laugh tinkled out upon the soft air. “I haven’t
been in perfect ages! It doesn’t attract me now that spring is here.”
Not in town! But he had seen her himself! Sheer surprise held
Storm silent for a moment.
When he spoke his voice sounded strange to his own ears.
“Where were you all day, Leila? What did you do with yourself?”
“I—I lunched out at the Ferndale Inn with Julie Brewster.” Her
tone was low, and she did not turn her head toward him as she
replied, adding hurriedly: “George, when are you going to give up
those stuffy rooms of yours in town and take a bungalow out here?
You can keep bachelor hall just as well; lots of nice men are doing
it . . .”
Through the desultory talk which followed, Storm sat as if in a
trance. If the blue tailored frock and hat with its saucy quill had not
been familiar to him in every line, he could still not have mistaken
that glimpse of her profile, the carriage of her head, the coil of
shining, spun-gold hair. Ferndale Inn was twenty miles away, a good
sixty from town, and inaccessible save by motor; she could not
possibly have reached there in time for luncheon, for it was after
twelve when she had passed him on that crowded, downtown street.
She had told a deliberate falsehood; but why?
“I think if you don’t mind, George, I’ll say good night.” Leila rose
at last, her white gown shimmering in the darkness. “I feel a bit tired
and headachey——”
“Not faint, Leila?” Holworthy spoke in quick solicitude.
“One of my old attacks you mean?” She laughed lightly. “Indeed,
no! I haven’t had one in ever so long. It is nothing that a good, early
sleep won’t put right. I suppose it is no use to ask you to stay
overnight, George?”
He shook his head.
“Must be at the office early to-morrow. I’ll catch the ten-forty train
to town. Good night, Leila. Sleep well.”
“Good night.” She touched her husband’s cheek softly with her
finger-tips as she passed him, and he felt that they were icy cold.
“Put on your coat if you go to the station with George, dear; these
early Spring nights are deceptive.”
Deceptive! And she, who had never lied to him before in the ten
years of their married life, was going to her rest with a falsehood
between them! Storm felt as if someone had struck him suddenly,
unfairly between the eyes. The fact in itself was a staggering one,
but a score of questions beat upon his brain. Why, if she wished to
conceal her errand to town, had she not been content merely to deny
her presence there? Why drag in the Ferndale Inn and Julie
Brewster?
As if his thoughts had in some way communicated themselves to
his companion, the latter asked suddenly:
“What sort of a place is this Ferndale Inn, Norman?”
 “Oh, the usual thing. Imitation Arcadia at exorbitant prices. Why?”
“Oh, I’ve heard things.” The tip of Holworthy’s cigar described a
glowing arc as he gestured vaguely. “I guess it is quiet enough; Leila
wouldn’t see anything wrong there in a million years unless she
happened to run into some of her own set in an indiscreet hour. I’m
informed that it is quite a rendezvous for those who are
misunderstood at their own firesides.”
“George, you’re getting to be a scandal-monger!” Storm laughed
shortly, his thoughts still centered on his problem. “The Inn is under
new management this season, and anyway you needn’t take a crack
at our set out here. They’re up-to-date, a bit unconventional,
perhaps, but never step out of bounds. The trouble with you, old
man, is that you’re old-fashioned and narrow; you don’t get about
enough——”
“I get about enough to hear things!” Holworthy retorted with
unusual acerbity. “Your crowd here at Greenlea is no different from
any other small community of normal people thrown together
intimately under the abnormal conditions created by too much
money and not enough to do. I don’t mean you two, but look around
you. This Julie Brewster of whom Leila spoke just now; she is Dick
Brewster’s wife, isn’t she? I don’t discuss women as a rule, but she’s
going it rather strong with young Mattison. Dick’s not a fool; he’ll
either blow up some day or find somebody’s else wife to listen to his
tale of woe and hand out the sympathy. That is merely a case in
point.”
“And just before your arrival, Leila was bemoaning the fact that
you’d missed domestic happiness!”
“Was she? Well, there are different kinds of happiness in this
world, you know; perhaps I’ve found mine in just looking on.” He
rose, “I’ll get on down to the station now, old man. No, don’t rout out
Barker; I’d rather walk.”
“I’ll stroll down with you, then.” Storm paused to light a cigarette,
then followed his guest down the veranda steps. He shrank from
facing Leila again that night; he would wait until the morning, and
perhaps later she would explain. Perhaps the explanation of her
prevarication lay in the fact of George’s presence; whatever her
errand, she might not have cared to discuss it before him. As this
solution presented itself to his mind Storm grasped at it eagerly. That
was it, of course! What a fool he had been to worry, to doubt her! He
could have laughed aloud in sheer relief.
“This is a great little place you have out here, Norman.”
Holworthy halted at the gate to glance back at the house outlined in
the moonlight. “I don’t wonder you’re proud of it. The grounds are
perfect, too; that little corner there, where the hill dips down and the
trout stream runs through, couldn’t have been laid out better if you
had planned it.”
“It wouldn’t be a little corner if that old rascal Jaffray would sell
me that stretch of land which cuts into mine, confound him!” Storm
plunged with renewed zest into a topic ever rankling with him. “I’ve
tried everything to force his hand, but the scoundrel hangs on to it
through nothing in the world but blasted perversity! I tell you,
George, it spoils the whole place for me sometimes, and I feel like
selling out!”
“Leave all this after the years you and Leila have put in
beautifying it because you can’t have an extra bit that belongs to
someone else?” Holworthy shook his head. “Don’t be a fool,
Norman! If you can only get another head gardener as good as
MacWhirter was——”
“I’ll have MacWhirter himself back in a month,” Storm interrupted.
“Didn’t Leila tell you? She saw him yesterday at the Base Hospital.
He has lost a leg, but he’ll stump around as well as ever on an
artificial one, and if he had to be wheeled about in a chair Leila
wouldn’t hear of not having him back. She is the most loyal little soul
in the world.”
“Of course she is!” Holworthy assented hastily. “You’re the
luckiest man living, Norman, and she is the best of women!”
He paused abruptly, and when he spoke again there was an odd,
constrained note in his usually placid tones.
“How about the South American investment? I wish you wouldn’t
go into it——”
“So, evidently, does Foulkes!” Storm retorted. “I had it out with
him to-day, and the old pettifogger talked as though I were the
original Jonah; told me to my face that I had no head for business
——”
 “Well, he’s right on that,” remarked the other, with the candor of
long association. “This South American thing isn’t sound; I’ve looked
into it, and I know. The big fellows would have taken hold of it long
ago if it had been worth while. You certainly cannot afford to take a
chance where they won’t.”
The discussion which ensued lasted until the station was reached
and Holworthy, with a final wave of his hand, disappeared into the
smoker of the train which was just pulling out.
Storm had had rather the better of the argument, as usual, for the
other’s slower mind was not sufficiently agile to grasp his brilliant but
shallow points and turn them against him, and he started homeward
in high good humor. How peaceful and still everything lay under the
pale shimmering haze of moonlight! Leila would be fast asleep by
now. What a child she was at heart, in spite of her twenty-eight
years! How she had hesitated, even over that little white lie that she
had been to Ferndale Inn with Julie Brewster, and how stupid he had
been to force it by questioning her before George!
The house as he approached it lay cloaked in darkness amid the
shadow of the trees save only the subdued ray of light which shone
out from the hall door, which in the custom of Greenlea he had left
ajar. His footsteps made no sound on the soft, springing turf of the
lawn, but when he reached the veranda the sharp, insistent shrill of
the telephone came to his ears.
As he started forward it ceased abruptly, and to his amazement
he heard Leila’s voice in a murmur of hushed inquiry. The murmur
was prolonged, and after a moment he slipped into the hall and
stood motionless, unconscious of his act, listening with every nerve
strained to the words which issued from the library.
“It is a frightful risk, dear! . . . I know, I’ve had to fib about it
already to him . . . No, of course he doesn’t, but what if others . . . .
Yes, but he has only gone to the station with George Holworthy; he’ll
be back any minute, and then what can I say? . . . . Of course I will, I
promised, but you must be mad! . . . Yes, in ten minutes.”
Storm heard the receiver click and had only time to shrink back
into the embrasure of the window when Leila emerged from the
library, still clad in her dinner gown, and passing him swiftly, seized a
long, dark cloak from the rack and sped noiselessly out of the door.
 Storm’s breath caught harshly in his throat, and he took an
impetuous step or two after her, Then he halted, and with head erect
and clenched hands he turned and mounted the stairs.
 Chapter II.
The Trap
“Didn’t you sleep well, dear? You look dreadfully tired.” Leila’s
eyes fluttered upward to meet her husband’s across the breakfast
table and then lowered as she added hesitatingly: “I—I didn’t hear
you come in last night.”
“No?” Storm gazed at her in studied deliberation as he
responded. “I did not wish to disturb you.”
She looked as fresh and sparkling as the morning, and the
sudden wild-rose color which flooded her cheeks beneath his
scrutiny heightened the charm of the picture she made; yet it sent a
surge of hot resentment to his heart. Her solicitude was not for him,
but in fear lest he had discovered her absence on that nocturnal
errand!
He wondered at himself, at his stoic outward calm as he
accepted his cup of coffee from her hands. Every fiber of him cried
out to seize her hand and wring the truth from her lips, but the pride
which had held him back from following her on the previous night still
dominated him after sleepless hours of nerve-racking doubt. He
would make sure of the truth without whining for explanations or
dogging her footsteps.
Leila glanced at him furtively more than once as he forced
himself to eat, then left her own breakfast almost untasted and
turned with a sigh to the little pile of letters beside her plate. As she
scanned them Storm saw her expression change, and she thrust one
of the envelopes hastily beneath the rest; but not before his eyes
had caught two words of the superscription upon the upper left hand
corner.
“Leicester Building.” That was the name of the skyscraper from
which he had seen her emerge on the previous day! His hands
clenched and he thrust back his chair with a harsh, grating noise as
he rose.
“I must go. I am late,” he muttered thickly.
“But Norman, dear, Barker hasn’t brought the car around yet.”
Leila, too, rose from her chair and with a quick movement thrust the
tell-tale letter into her belt.
“No matter, I’ll walk.” He turned to the door with a blind instinct of
flight before he betrayed himself. If his suspicions were after all
capable of an explanation other than the one his jealous fury
presented he would not play the fool. But he must know!
“Will you be home early this afternoon?” Leila bent to rearrange
the daffodils in a low glass bowl as she spoke, and her face was
averted from him. “Early enough for your golf, I mean?”
“No, I shan’t be out here until late. Don’t wait dinner for me.” A
swift thought came to him, and he added deliberately: “There is to be
a special meeting at the club in town; I’ll try to catch the midnight
train, but in the event that I decide to stay over, I’ll ’phone, of course.”
She followed him out upon the veranda for his customary farewell
kiss, but to his relief he spied a familiar runabout halting at the gate
and escaped from her with a wave of his hand.
“There’s Millard! I’ll ride down with him. Good-bye.”
Millard was a golf enthusiast, and his detailed description of the
previous day’s game lasted throughout the interval at the station, but
it fell upon deaf ears.
Storm’s thoughts were in a turmoil. At one moment he felt that he
could no longer endure the strain of the attitude he had assumed;
that he must stop the train, rush back to his wife and demand from
her the truth. At the next, his pride once more came uppermost; his
pride, and the underlying doubt that his worst suspicions were
actually founded on fact, which made him fear to render himself
ridiculous in her eyes. It was true that she had lied about her
presence in the city on the previous day, but she had gone openly to
an office building at broad noon and left it alone. She had received a
letter from someone in that building which she tried to keep from his
observation, but her expression when she picked it up, although
furtive, had not been guilty; rather, it had been full of pleased
expectancy, as quickly masked. That visit, that letter might be simply
explained, but the telephone call which he had overheard, the errand
that had caused her, his wife, to steal from her house at midnight like
a thief——!
There could be no other construction than the obvious one! He
recalled her cool, unruffled assurance at the breakfast table, her
charming air of solicitude at his own haggard appearance, and his
blood boiled with rage. Did she think to deceive him, to keep him
indefinitely in the state of fatuous complacency in which he had
pitied other husbands? Was he to be spoken of, for instance, as
George Holworthy had spoken of Dick Brewster the night before?
With the thought Storm glanced about him at his neighbors in the
club car. If what he suspected were true, did any of them know
already? Were any of them pitying him with that careless, half-
contemptuous pity reserved for the deceived? He detected no sign of
it, but the idea was like a knife turned in a wound, and he hurried
from them as soon as the train drew in to the city station.
There he found himself mechanically making his way toward the
Leicester Building, with no very clear impression of what he meant to
do on arrival. Among its myriad offices, representing scores of varied
financial and commercial activities, he could scarcely hope to obtain
a clue to the purpose of his wife’s visit; and yet the place drew him
like a magnet.
Within the entrance he halted before the huge directory board
with its rows of names alphabetically arranged; halted, and then
stood as though transfixed. Midway down the first column a single
name had leaped out to him, and its staring letters of white upon the
black background seemed to dance mockingly before his vision.
“Brewster, Richard E. Insurance Broker.”
Dick Brewster! The husband of that light-headed, irresponsible
little Julie, the very man to whom his thoughts had turned in the train
not a half-hour since! The man of whom George Holworthy had
spoken—and what was it that George had said?
“She’s going it rather strong with young Mattison. Dick’s not a
fool; he’ll either blow up some day or find somebody’s else wife to
sympathize——” Was that the solution? Could old George, obtuse as
he was, have divined the truth and been trying in his stupid,
blundering fashion, to warn him? Could it actually be that the woman